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ROOFING & SHEET METAL CONTRACTORS' ASSN. OF PHILAD

May 2, 1975

ROOFING AND SHEET METAL CONTRACTORS' ASSOCIATION OF PHILADELPHIA AND VICINITY, 4333 East River Drive, Philadelphia, Pennsylvania 19129 and KULZER ROOFING, INC., 3334 North Tenth Street, Philadelphia, Pennsylvania 19140 and SCANLON & HAYS COMPANY, INC., Old Salem and Creek Roads, Brooklawn, New Jersey 08030
v.
SHEET METAL WORKERS' INTERNATIONAL, ASSOCIATION, LOCAL UNION NO. 19, 4010 Levick Street, Philadelphia, Pennsylvania 19135



The opinion of the court was delivered by: DITTER

 In this case, a preliminary injunction was granted to prohibit defendant's breaching the no strike provision in a collective bargaining agreement. Defendant has appealed. This opinion is being prepared so the Court of Appeals may be advised of my reasons for issuing the injunction.

 Plaintiff, Roofing and Sheet Metal Contractors' Association of Philadelphia and Vicinity (RSMCA), is a Pennsylvania corporation, the primary function of which is to represent its members in negotiating and administering collective bargaining agreements with various labor unions. Plaintiffs, Kulzer Roofing, Inc., and Scanlon & Hays Company, Inc., members of RSMCA, are corporations engaged in the roofing and sheet metal contracting business. All three plaintiffs are employers within the meaning of Section 2(2) of the Labor Management Relations Act, 29 U.S.C. § 152(2).

 Defendant, Local 19, Sheet Metal Workers International Association, is a labor organization within the meaning of Section 2(5) of the Labor Management Relations Act, 29 U.S.C. § 152(5). Local 19 is organized for purposes of representing its members concerning wages, working conditions, and grievances with employers in the Philadelphia vicinity.

 RSMCA and through it, Kulzer and Scanlon, are parties to a collective bargaining agreement with Local 19, effective until April 30, 1975. Kulzer and Scanlon, which both employ members of the defendant, Local 19, are engaged as subcontractors performing construction work at Neshaminy Maple Point High School in Middletown Township, Bucks County, Pennsylvania. Under state law, 53 P.S. § 1003 and 71 P.S. § 1618, specifications for projects of this type must be drawn so that there can be separate bids on plumbing, heating, ventilating, and electrical work. The contract is then awarded to the lowest responsible bidder.

 Another subcontractor at the Neshaminy High School construction site is Sherrard Electrical, Inc., which does not employ union labor. There are two gates or entrances to the project, one reserved exclusively for Sherrard employees, the other is for use by all other individuals, including employees of Kulzer and Scanlon.

 Around the first of this year, several of Sherrard's employees selected Local 98, International Brotherhood of Electrical Workers, as their bargaining agent. Sherrard, however, did not execute a collective bargaining agreement with Local 98. Beginning on or about January 16, 1975, Local 98 picketed the Sherrard entrance at the Neshaminy construction site. Thereafter, certain members of Local 19, who formerly worked for Kulzer and Scanlon, withheld their labor and refused to perform their duties of employment. Kulzer and Scanlon have no connection with Sherrard except that they are all contractors working on the same site, and there is no dispute between Local 98 and Kulzer and Scanlon.

 Two parts of the collective bargaining agreement between plaintiffs and defendant are important here. Article 12 provides a four-step arbitration culminating in an appeal, by either party, to the National Joint Adjustment Board established by the Sheet Metal Contractors National Association and the International Union. A decision by the board is binding on both parties. Section 5 of Article 12, however, stipulates that:

 
There shall be no cessation of work by strike or lockout during the pendency of the procedures provided for in this Article.

 The other relevant provision, Article 13, states that the collective bargaining agreement is not violated if members of Local 19 refuse to cross or work behind any "legal" picket line.

 Under the agreement, when an employer needs workers he contacts the union hiring hall which then sends its members in order of longest without work to the job site. The employer does have the option to reject those offered until those with particular qualifications are sent. Between January 16, 1975, and the hearing in this matter, March 5, 1975, Local 19 dispatched approximately ten persons to Kulzer and Scanlon at the Neshaminy construction site but in each case the men declined to work. At the time, Local 19 had approximately 2000 members of which well over 300 did not have jobs.

 Kulzer and Scanlon claimed they would suffer irreparable harm if an injunction was not granted to force compliance with the agreement's no strike provisions. At the time, construction on the roof of the school had been completed. However, the expansion joints, wall copings and roof edges which were to be covered with sheet metal had not been finished. Thus, if it snowed or rained, moisture could get in and destroy much of the interior ceiling and electrical work as well as the roof itself. Moreover, other mechanics had to reschedule their jobs since most of the interior sheet metal work for the heating and air conditioning system was still to be done.

 As a result, Kulzer and Scanlon were directed in a letter from the prime contractor, Frank H. Wilson Company, to begin to perform their contracts by February 24, 1975. If Wilson had sent another such notice to plaintiffs as to their lack of performance, they would have been subject to removal from the project within 48 hours. As one of their contract requirements, both Kulzer and Scanlon obtained performance bonds. If they were to default on their work and the bonding company had to pay damages, Kulzer and Scanlon might be unable to get further bonds and perhaps be unable to bid on future construction jobs.

 Plaintiffs contended that in view of the no strike provision in the parties' collective bargaining agreement, the refusal by Local 19's members to cross Local 98's picket line justified the issuance of an injunction under the holding in Boys Markets, Inc., v. Retail Clerks ...


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